Dorf on Law

by Michael Dorf A recent article in The Guardian called my attention to a grotesque law review article that appeared in the National Security Law Journal (NSLJ) , a student-edited journal at George Mason University School of Law. The article by William Bradford , an assistant professor in the Department of Law at West Point (and formerly a law faculty member at the University of Indiana), is a 180-page McCarthyite screed against foreign and domestic enemies--including civil rights attorneys, the U.S. Supreme Court, the Obama Administration, and especially the legal academy--for their ostensible support for Islamist enemies in the long war in which the U.S. is engaged. I use the term "McCarthyite" literally. Although much of Bradford's article offers a reading of the law of war at odds with the reading of those whom he criticizes--which is fair enough--his tone is far from academic. He labels those with whom he disagrees cowards, anti-Americans, and fifth-columnists. ...

by Michael Dorf As I noted a week ago , last weekend I spoke on a plenary panel at the American Sociological Association meeting in Chicago. Here I'll give a brief report in the style of a What I Did Last Summer essay that an elementary student might write for the beginning of the term. As the title of this post suggests, I'll connect it to a broader issue in constitutional law. The first thing I'll note is that the conference was enormous, both in terms of the number of attendees and the number of sessions. I was told there were over 6,000 attendees. I haven't checked exact figures, but that feels an order of magnitude larger than the Association of American Law Schools (AALS) annual meeting, which is my own point of reference for a large conference. I suppose that makes sense. There are just over 200 ABA-accredited law schools in the U.S. but there are nearly 3,000 four-year colleges (and about half that many two-year colleges), most of them with sociology departm...

by Neil H. Buchanan The first several paragraphs of my most recent Dorf on Law post made clear (once again) that my general attitude toward what passes for modern economics might best be described as poorly contained contempt.  The title of the post itself -- " Why Am I Defending Economists -- Especially THESE Economists? " -- expressed my discomfort with the idea that I was taking the side of some prominent economists who had recently been wrongly criticized for being politically naive. That two of those economists -- Martin Feldstein and Greg Mankiw -- are among the economists whose views I generally find least credible (and often ridiculous) made it ever so much worse.  Fortunately, an op-ed that was published in The New York Times that same day reminded me of the fundamental reason why economics (as it is currently practiced nearly everywhere) is so damaging.  I am back in my comfort zone. In " The Case for Teaching Ignorance ," an author named Jamie Hol...

by Michael Dorf In the aftermath of  NFIB v. Sebelius   various commentators ( including me ) noted that during the period before the case was decided, liberals tended to dismiss as preposterous the arguments that conservatives made for the proposition that the federal government cannot use its Commerce Power to regulate the multi-billion-dollar health insurance industry via a purchase mandate. We liberals didn't take those arguments seriously because we didn't share the conservatives' underlying values and, not sharing them, we under-estimated how much the arguments would appeal to judges and Justices who do share those values. In my latest Verdict column , I warn that something like that is at least within the realm of thinkability with respect to birthright citizenship. The leading precedent, U.S. v. Wong Kim Ark , makes it very difficult to argue that children born in the U.S. to undocumented immigrants aren't citizens but the question is technically still op...

by Neil H. Buchanan Frequent readers of Dorf on Law have seen ample evidence that I am hostile to the economics profession as it is currently constituted.  Although I often find myself in agreement with those on the left side of the current divide among economists, I have made clear my discomfort with the norms (both intellectual and professional) of the field as practiced in almost all economics departments -- in the U.S. and around the world.  I am certainly a " dissenting economist ." On the policy front, I have critiqued economists who advise both Republicans and Democrats , though not in equal measure.  Moreover, I spent quite a bit of time two years ago describing how "orthodox left" economists such as Paul Krugman end up (perhaps inadvertently, but still quite consistently) maintaining the professional status quo by siding with conservative economists against "heterodox left" economists.  (My final post on that subject can be found here , with...

By Eric Segall Judge Richard Posner has come under heavy fire this week for reversing the grant of summary judgment against a pro se prisoner who claimed that doctors at his prison violated his rights by refusing to prescribe the drug Zantac correctly. Judge Posner’s opinion relies to some degree on independent research the Judge performed on various websites including WebMD, the home page of the company that distributes Zantac, the Physician’s Desk Reference, and the Mayo Clinic. A strong dissenting opinion argued that it was improper for Judge Posner to go outside the record to send the case back to the trial court for more factual findings. The issue of whether it is appropriate for appellate judges to perform internet research outside the purview of the parties' submissions is hotly contested and fraught with both practical and philosophical issues concerning the role of judges and the adversarial process. I am not writing to take a position on that question generally....

by Michael Dorf Tomorrow I will be speaking on a plenary panel in Chicago at the American Sociological Association's annual meeting . The organizing theme for the conference is "Sexualities in the Social World" and my particular panel is titled "The Politics of Same-Sex Marriage: Public Opinion and the Courts." The other panelists are  Greg Lewis of Georgia State, Brian Powell of Indiana, Katrina Kimport of UCSF, and panel organizer/moderator Paula England of NYU. As the lone lawyer in this group (and one of only a handful at the conference), it's fair to say that I was asked to give the "Courts" angle. That's not to say I'm uninterested in the politics of or public opinion regarding same-sex marriage (SSM) or other subjects that intersect with law. Indeed, although I will spend most of my allotted 16 minutes (plus Q&A) discussing the legal road to and from  Obergefell v. Hodges , I also plan to insert some theory about the rela...

by Sherry F. Colb [cross-posted with footnotes on Balkinization ] In The Myth of the Cultural Jew , Roberta Kwall, the Raymond P. Niro Professor of Law at DePaul University, has accomplished something quite extraordinary.  Applying the lessons of cultural analysis to the question of what it means to be a Jew, Kwall demonstrates unequivocally and in a large number of contexts, that Jewish law—“Halakhah”—whether observed by the most devout “Haredim” (named for the Hebrew word for “trembling”) or the nominally Reform Jews who rarely observe commandments or attend synagogue services—is necessarily and profoundly shaped by the particular human beings who follow that law and who call themselves “Jews.”  The content of Jewish law, then, takes in the proclamations of elites as well as the behavior of the masses of Jewish individuals who negotiate their lives embedded in a culture of Jews as well as the non-Jews who surround them.  Because people dynamically construct Jewish ...

by Sherry F. Colb My Verdict column for this week  considers a case from the U.S. Court of Appeals for the Sixth Circuit, Huff v. Spaw , in which the court held that a person who inadvertently pocket dials a third party retains no "reasonable expectation of privacy" (under the federal Wiretap Act ) from the third party's listening to the person's conversations picked up by the cellphone (and therefore by the third party) for 90 minutes.  The court's reason for this aspect of its ruling is that people can protect against the pocket dialing phenomenon and accordingly assume the risk of such disclosure if they fail to take the proper self-protective measures.  In my column, I discuss some of the problems inherent in deciding the case in the way that the Sixth Circuit did. Here I want to consider one downside of coming out the other way and holding a third party to have violated the privacy of the person whose telephone pocket dialed the third party:  it asks peop...

by Neil H. Buchanan [Update: A reader has provided a link to the letter that I describe in Paragraph 6 of this post: http://www.ijdh.org/wp-content/uploads/2015/07/Letter-for-President-Obama-July-14-2015-2.pdf.] One of the news stories that has been rattling around in the background over the last few years is a human rights crisis in the Dominican Republic (DR), which was set off by a 2013 ruling of the DR's highest court that Dominicans of Haitian descent -- even those from families who had lived in the DR for generations -- were to be stripped of their citizenship.  I recall seeing a few headlines and worrying about what might be happening, but the media's coverage of the situation was sufficiently muted that I had not consciously engaged with any of the details. As it happens, one of my recent former research assistants, who is now an attorney here in Washington, is a former Peace Corps volunteer who spent two years in the DR before starting law school.  He and some o...

by Michael Dorf A recent anonymous article in the NY Review of Books argues that none of the now-conventional accounts of the rise of ISIS in fact explains the phenomenon. Casting aside the lesson of dozens of insurgencies since ancient times, ISIS seeks and holds territory while engaging in combat with regular militaries. ISIS picks fights it seemingly cannot win, and wins or at least survives. Although ISIS now has substantial funding from extortion, looting, oil, and foreign donations, it began with very little money, and was not well-positioned relative to other jihadi groups. I cannot do justice to the article, which I urge readers to examine for themselves. The author concludes that "we should admit that we are not only horrified but baffled." One is left much like Shakespeare's Othello in puzzling over the motives for Iago's evil, while Iago spits "Demand me nothing: what you know, you know." But is there really that little that we know? Despite ...

by Neil H. Buchanan This is a short update to my Dorf on Law post from two days ago (Thursday, August 13, 2015). Toward the end of that post, I reported that the Australian government had set up what is technically known as a "fully-funded" retirement system, in which workers are required to deposit money into savings/investment accounts, which are then managed by the government without further input from the worker.  As I described it, the Aussie system "essentially gives workers zero control over how their savings are invested in the financial markets.  Imagine a nationwide system in which Social Security payroll taxes go into a single mutual fund, and the best financial managers invest the funds with relatively low management fees.  The evidence indicates that the Aussie system works rather well." According to an Australian reader, my facts are wrong -- but it turns out that they are wrong in a way that supports my larger point.  Here is the comment (...

by Michael Dorf In a recent speech , Jeb Bush accused Hillary Clinton of standing "by as th[e] hard-won victory by American and allied forces [in Iraq] was thrown away." It's tempting to react to this accusation by reaching for something breakable to throw, given the inanities embedded in the statement. First, by 2009, sectarian violence had declined from its peak a few years earlier but that hardly counts as "victory." Second, the suggestion that, if only the U.S. had maintained a large force in Iraq a few years longer, Iraq would now be a multi-ethnic paradise, is delusional. Third, the claim ignores the fact that the troop draw-down under Obama (and Clinton) proceeded on a timetable that George W. Bush had himself set. Fourth and most galling of all, to suggest that the rise of ISIS and the broader Sunni/Shiite conflict throughout the Middle East is chiefly the result of a former Secretary of State's failure to urge prolonging the U.S. combat mission ...

by Neil H. Buchanan In my Verdict column earlier this week , I ran through a few of the most common arguments that conservative critics of Social Security repeat ad nauseum, showing each of those arguments to be based on nothing more than an inability to understanding basic accounting.  I then used the most obviously false of those arguments -- that Social Security is a Ponzi scheme -- to frame Tuesday's Dorf on Law post , in which I explained how and why private savings accounts are no more "real" than Social Security's finances, including the much-misunderstood retirement trust fund. People imagine that banks hold piles of money, whereas Social Security supposedly spends its money right away.  In fact, both banks and Social Security send their money right back into the financial system as soon as they receive it, yet both are able to keep the promises that they are making.  The argument should not be about whether one set of promises is more real than the oth...